Alternative Law Journal
MICK DODSON AM[*]
Let’s be clear from the outset that the vast majority of Aboriginal men condemn the violence that corrodes our communities. We share the community’s outrage at acts of criminal violence perpetrated against our women and children who have the right, like all Australians, to be safe.
Their protection requires an immediate response and so too do the actions of perpetrators who must endure the full force of the law. But the Federal Attorney-General’s Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) is a flawed public relations exercise that potentially exacerbates dysfunction and despair which fuels antisocial behaviour.
For a start the legislation is based on a false premise that customary law permits child sex abuse — a lie that would have Australians believe that Aboriginal culture is anathema to any civilised society. Whether it‘s used as an excuse by perpetrators or a cop-out by non-Indigenous Australians who find this explanation easier than facing up to their own responsibilities, it is slanderous and it is wrong.
Similarly, it is wrong to represent the application of customary law as a corruption of justice.
Customary law seeks to achieve the same objectives as criminal law:
• To restore community safety and harmony
• To penalise in a way that satisfies a community’s need for retribution
• To reform, rehabilitate and deter.
To meet these essential aims, customary law does change and adapt with our culture and our environment. Indigenous peoples must adapt to survive.
Customary practice that may have served a purpose in our communities in the past, but constitutes criminal behavior today, cannot be tolerated. And what Dr Kenneth Brown describes as ‘bullshit versions of customary law put forward to justify violence and abuse of women’ [see p11] should not be used to denigrate and corrupt Aboriginal culture.
Customary law is a factor to consider just like a whole range of other factors which are taken into account in the sentencing of any Australian. The issue here is not whether these factors should be applied but that they must be applied appropriately. It’s a legal 'no brainer' that shows the new Act for what it is.
What needs to change is how Australia moves beyond serial crisis intervention to take the systemic, long-term action consistently called for by Indigenous Australians living the horror of family violence.
What we need to do, to build healthy communities, is to forge — not inhibit — the kind of relationships that underpin reconciliation. I know from my international work, and from what we are learning about good indigenous governance in Australia, that confidence gives Indigenous peoples remarkable strength to overcome disadvantage.
Confidence grows when people and their cultures are treated with respect. We cannot do that while we continue to be represented as a people, as a culture, on the basis of the worst, most heinous behaviour perpetrated by some of our most damaged citizens.
National discussion about the ugliest parts of the saddest Indigenous communities is played out by powerful people on both sides as some kind of culture war.
Fellow Reconciliation Australia director Mark Leibler, senior partner at Arnold Bloch Leibler, wrote last year in Lawyers Weekly that the legal fraternity has a special role to play in supporting the aspirations of Indigenous Australians. He said
[w]e should make no mistake that in a period of heightened interest in the plight of Aboriginal Australians we run the risk of allowing misinformed, racist argument to be presented as genuine concern.
It’s time to bridge the gap in understanding of customary law to ensure Australians, Indigenous and non-Indigenous, respect its appropriate application in 2007.
[*] PROFESSOR MICK DODSON AM is a member of the Yawuru peoples. He is Director of the National Centre for Indigenous Studies at the ANU and a Director of Reconciliation Australia. Professor Dodson is a community member for the Pacific region on the United Nations Permanent Forum on Indigenous Issues.
© 2007 Mick Dodson